Friday, May 10, 2013

Non-negligent mistake vs negligence vs strict liability vs Benghazi

Tort law was one of my favorite classes in law school, gruesome injury cases being more interesting than contractual disputes over international chicken shipments.

The usual rule of non-negligent mistake is that you lump it. I drive over a virtually-invisible oil patch and go into a skid and injure you. No one would've seen it, so the injuries are your problem.

Negligence is when I failed to see an otherwise-visible oil patch because I was adjusting the car radio instead of carefully watching the road, and this time I owe you. The classic Reasonable Person wouldn't have adjusted the radio except in absolutely safe conditions. The RP isn't superhuman, supersmart, or superskilled, but he or she doesn't make easily foreseeable mistakes.

Strict liability reverses the rule of non-negligence:  if the harm was from something that even RP would not have avoided, the victim gets compensated. Same as the first case, I drive over a virtually-invisible oil patch and injure you, only that now, your injury results from the fact that I was transporting explosives that then exploded. Strict liability is considered a mostly-modern legal invention but there were earlier forms. Collapsing dams for watermill ponds were examples, and my favorite case was a pioneering, late 19th-Century balloonist who landed on a woman's vegetable patch. She hauled him into court for her veggies. He rightly pointed out that ballooning is brand new and no one knows how to land them - the judge said tough luck, if you do something abnormally risky like ballooning then you're strictly liable for any harm.

Negligence and strict liability seemed like separate concepts until Professor Grey pointed out that the Reasonable Person acts reasonably every time, but no actual human being does. It is unreasonable to expect someone to be reasonably prudent every time, but the law expects that, so a corner of strict liability is embedded in the law of negligence, presumably for the same societal reasons that we apply strict liability in other situations.

So this brings us to Benghazi - it's hard to figure out what the right wingers are screaming about, especially when their bizarre claims about coverups seem tangential to the real issue of inadequate security in the lead-up to the tragedy. I don't know if the inadequate security was a non-negligent mistake or negligence on someone's part, although I'd lean towards the latter. As far as the response  once the attacks started and the hurt feelings of the people who believe they didn't get accurate information in the near-term aftermath, the first of those two things is hard to judge and the second isn't all that important.

But that still leaves the screw-up in the security preparations. Even if it's negligence that resulted in four deaths, I don't hold that as a major screw-up of the Obama Administration. They make thousands of security decision, and they will screw some of them up. Someone should pay for it somewhere in the chain of command (assuming it is negligence), but this is small potatoes - it would be unreasonable to go from this to concluding that the administration as a whole is negligent.

I wish the worst thing we could say about the Bush Administration was that they screwed up and four people died.


UPDATE:  I need to do some additional research but I think Paul Ryan lied to the public on national television about a national security issue in the vice-presidential debate when he said there was virtually no US security in Libya compared to what we have at the Paris embassy, while knowing that CIA was nearby. He should get hit with this when he runs in 2016.

54 comments:

Rattus Norvegicus said...

I thought some heads had rolled at the State Department over this already.

Anonymous said...

The facts were changed to meet the narrative of the election. This was done intentionally. A lie by omission is still a lie.

http://abcnews.go.com/blogs/politics/2013/05/exclusive-benghazi-talking-points-underwent-12-revisions-scrubbed-of-terror-references/

This is going to get worse.

Benghazis happen, but to lie about to keep a politically narrative going during election is just criminal.



1

Anonymous said...

your problem is with the number of revisions ?

Anonymous said...

No my problem is with what the revisions removed. New story out that Petraeus had concern for the revisions.

Hillary Clinton spoke with Hicks at 2am the morning of the attacks. He was in Tripoli and he had spoken with Stevens before he died. To then claim that the ONLY evidence they had was a sponataneous protest from a reaction to video was the reason for the attack is simply dishonest.


Like I said this is going to get worse reagardless how many naive reviews like this one by Brian is put forth.



1

Anonymous said...

"Even if it's negligence that resulted in four deaths, I don't hold that as a major screw-up of the Obama Administration. They make thousands of security decision, and they will screw some of them up. Someone should pay for it somewhere in the chain of command (assuming it is negligence), but this is small potatoes - it would be unreasonable to go from this to concluding that the administration as a whole is negligent."


You would have more of a point if this happened in France or Italy, but it did not. It happened in a known volatile environment, that had previously been attacked by Al Queda elements, SoS Clinton sent Stevens to Benghazi to establish a more permanent post, it was the anniverasy of 911, and on and on. This was not one of thousands this was more along the lines of 1 of 3.


I look forward to your response of "but Boooooosh...."


Good luck with research on Paul Ryan. I have mine on you and if you run in 2014 your implict support of KT's military hating rants on this site that you have shared control over will be part of that campaign.


1

Brian said...

Anon 1's lack of interest in what actually caused the deaths, and focus instead on when the T word was uttered, just makes my point.

Brian said...

Okay, just saw the response posted before mine. It's wrong, but at least it's on point. Progress!

Anonymous said...

Brian,

Your latest responses are quite informative "You're wrong and I am right."

At least there was not a "but Booosh..."


Progress


Oh please point to where I was wrong.


1

Jeffrey Davis said...

I can't figure out what the issue is? Why is this time different than the other times embassies have been attacked and our people have died?

Gator said...

This is just one more case proving that the republicans are not interested in governing, they are just interested in getting power. No one rational can understand what they are complaining about and they are not putting forth any solutions to the supposed problem. They conveniently forget that they consistently oppose expansion of the Dept of State security budget.

Jeffrey Davis said...

I just thought of the reason why Republicans are pursuing this: it's the LBJ pig/f*cker accusation. If people are talking about this they aren't talking about the horror that the Republicans have become.

Anonymous said...

I see blind ignorance is contagious Brian has infected Jeffrey and Gator.


"They conveniently forget that they consistently oppose expansion of the Dept of State security budget."


Which according to even the joke ARB report had absolutely nothing to do with the security situation in Benghazi.


All sing together with your fingers in your ears "lalalalalalalala"


Maybe next we will have a Rabett Run hero, Kos stop by and say "Screw Them" to the two Navy Seals, Ambassador and state department employee who died in the attack. I mean he can just put into clear words what you are all thinking.

1

kT said...

Dude, how many hillbillies died a muddin this week? Get a grip and move on.

EliRabett said...

As usual, it pays to actually RTFR. The Republicans note that embassy security has increased substantially in the last decade. For diplomatic and consular security it went from 639 million $ in 2003 to 1355 M$ in 2012.

For embassies the rise was from 1441 M$ in 2003 to 1537 M$ in 2012.

What the Democrats are pointing to are reductions of 128 M$ in 2011 and 331 M$ in 2012 (These are fiscal years US which start in October 20xx-1). And, of course, there is the 20% cut due to the sequester in FY2013.

Of course, these are not the only accounts, which makes things harder to figure out, for example, CIA and DOD budgets.

So, to sum it up, less money was allocated by Congress than requested in FY 2011 and 2012. The budgets are bigger than a decade ago.

On the other hand the embassies and consulates in Iraq and Afghanistan probably eat a large chunk of the diplomatic security budgets and the hardening of US embassies since the 1998 attacks on the embassies in Kenya and Tanzania probably also has chewed a huge amount.

Gator said...

Wrestling with a greasy pig only gets you messy... I should know better ... but hear goes.

Dear #1, you are full of sh*t. I know this is the official republican mode of operation, so that is not an insult but rather just a recognition that you are following the party line.

Anyone can look up the ARB report and see talk about how the State Department is being asked to work in more dangerous areas with less resources. This is right in the preamble. And think about how many resources the monstrosity in Iraq built by Bush consumes. So, yes, the republican opposition to fully fund security for the State Department is relevant.

Furthermore, find one person saying "screw you" to the US citizens and government employees who died and I guarantee that person will be an anti-government tea party type, not a democrat. You are saying "screw you" to them by trivializing this attack into a way to attack the president and the democrats. Instead of partisan attacks it would be nice to see republican actually trying to participate in governing.

What's your idea for changing the real world situation? Just have the president go on TV and parrot "Terrorism" every day??

Anonymous said...

The ARB report that did not interview Secratary Clinton?

Fiscal Year 2004 security budget $640 million, $1.6 billion in 2010, reduced to $1.35 billion for 2012. I know you have a strong aversion to facts and like to just throw down the colorful language, but that is normal practice here.


From prior Congressional Testimony:

"
Still, then-Deputy Assistant Secretary for Diplomatic Security Charlene Lamb testified in October that the size of the attack -- and not the money -- was the issue.

Asked if there was any budget consideration that led her not to increase the security force, she said: "No."

She added: "This was an unprecedented attack in size." Asked again about budget issues, Lamb said: "Sir, if it's a volatile situation, we will move assets to cover that."


So lack of money was not part of the problem.


You do not recognize Kos's infamous "Screw Them" phrase?


One cannot fix what is broken until the problem and root cause analysis has been completed.


Yep I link to news stories from ABC, quote Congressional testimony and I am the one full of something.


Your response was empty and meaningless and contributed nothing new to the topic.



1

EliRabett said...

Sorry, the State Department did not have a matter transmitter to zip some lightly armed guys from Tripoli to Benghazi with a couple of Glocks.

Anonymous said...

Sorry the compound had been attacked earlier in the year with a 4 foot hole blown in the wall, but you're right that was not enough indication to increase security.

Time to retire Eli.


1

Anonymous said...

"...zip some lightly armed guys from Tripoli to Benghazi with a couple of Glocks."


Why not? The best intelligence at the time was it was a protest in reaction to a video...


Idiot


kT said...

You 'increase security' enthusiasts sure do like your government gravy train. I guess it's time to tighten the belt and learn a little bit about austerity and responsibility.

Anonymous said...

Are you the KT military hater?

Brian said...

kT - in this case they should have increased security, or otherwise not played the consular game. Anon 1 veers dangerously near reasonableness when he talks about whether preparations were adequate. Where he falls off is in thinking that consular security decisions in Benghazi were an unusually high priority decision reaching uppermost levels of government.

a_ray_in_dilbert_space said...

You've got to love the Rethuglican Bidness Model: Cut back on spending by claiming that gummint doesn't work and that voters can have something for nothing. Wait until things start to fail. Say I told you so. Repeat. It's fun for the whole family 'til someone loses a democracy.

Rely on Faux News--the Network that makes you stupider--to distribute talking points and keep the yokels voting for the representatives eviscerating the country and Voila, the South has risen again by sinking to new depths.

Why do Rethuglicans hate America?

kT said...

No, I'm kT the debt and crime responsibility assigner. Tell me again about the Gulf of Tonkin incident or WMDs. Thanks in advance.

Gator said...

Re "screw them" -- you are comparing one blogger's comment from nearly 10 years ago to the official governing policy of the republicans. Nice. Go back and look at that thread from 2004 and you will see Kos challenged on this comment by just about every other commentator.

Compare to today, where the entire republican/tea party/fox news machine has geared up to try to turn these deaths in Benghazi into a political gain. You and all your friends have been saying "screw them" to the ambassador and the others who died since before they died as they are simply part of the government.

Don't you read the polls? 44% of the republicans think they need an armed revolution because the government is our enemy. This is just one more front in the war.

Anonymous said...

A_ray the simplicity used in your arguments are not worth the time to respond. I provided the actual budget numbers for security spending make your case from there.

Brian,

So Hillary tells Stevens to go establish the consulate in Benghazi which is in a country that recently overthrew its dictator, has terrorists groups all over the country, the British pulled their embassy staff because of attacks, the consulate had already been attacked several times in 2012, by Al Qaeda, but your position is that security concerns and decisions would not go to the highest levels of government? Really?

They definitely went to the SoS either she was aware of the requests and denied them so she can take most of the blame or she was not aware which would make her incompetent in that position. Stop comparing security concerns in Paris with Benghazi, they are very different.

No this is not Obama's fault.


KT,

What about Pearl Harbor? The Lusitania?

Join me in honoring those who chose to serve today.


1

Anonymous said...

Gator,

I reject your opinion as it is not based in fact.


No we just want to understand what happened and why.


Ah Polls, no I do not live my life by polls. I wonder if you ran that poll in 2005 what the results would have been?

I would answer the question no FWIW. Though I am sure a_ray will call me a liar and a Rethuglican just like he would in his HS debate class.



1

kT said...

Join me in honoring those who chose to serve today.

Sure, serve liars and criminals, AND kill millions, no thanks. I'll pass. Yet you seem to think a couple of guys in Benghazi are extra special.

Anonymous said...

For one detail, let's keep in mind that the Benghazi compound was not an embassy, and was apparently connected with the CIA in a way that it was not in the US national interest to broadcast.

For lots more, see
www.juancole.com/2013/05/republican-myths-libya.html

Pete Dunkelberg

Anonymous said...

Of course the compound in Benghazi was not an embassy as that was in Tripoli. Thank you Captain obvious.


We'll see if Brian, John, and Eli respond to KT's hate of people who serve or ignore it like last time.


KT why not leave the country? You are contributing to those deaths, you also have innocent blood on your hands. How to justify such support for such evil?



1

kT said...

How to justify such support for such evil?

The same way you justify, and indeed glorify and honor, the far more deadly and pervasive evil of the Gulf of Tonkin fraud and resolution and the entire war in southeast Asia. I could add Iraq to that list of failed unnecessary wars but then you would regurgitate a whole new set of made up imaginary crap and lies.

Either you are incredibly ignorant of your own history or are exhibiting a conscious selective memory.

Anonymous said...

KT,

When have I made any statements about the Gulf of Tonkin or Iraq?

Hmm

Answer my question. Why do you contribute to these evils you proclaim exist? Since you have defined all these evils conducted by illegal wars and a murderous military, why do you contribute to them?



1

kT said...

When have I made any statements about the Gulf of Tonkin or Iraq?

You haven't, I just brought it up to highlight how puny and insignificant your Behghazi trolling here is. Thanks for playing. No thanks.

Anonymous said...

Poor KT cannot resolve his inner contradictions and demons. He is torn by what he knows are evils in this country and his contribution and support for those evils. His words of self righteous BS cannot cover his actions, which is his daily monetary support for those things and people he finds so repulsive.

By his own words KT has the blood of millions of innocent civilians on his hands and he continues to support the death mill, fascinating.


1

EliRabett said...

While it is true that the Tardis would deliver the lightly armed Guys with Glocks to the consulate, in reality, they either had to drive 1000km or fly. Get the plane/car ready, gas up go, and who knows what is the reception committee at the airport or along the road? And how long would it take either way?

The best force solution at the time would have been to fly in trained groups from Croatia or Italy and that would have also taken significant time to gather together.

The Guys with Glocks were not a serious solution, unless you got four Ironmen on deck.

EliRabett said...

#1 Eli objects to your attempts to demean American diplomats and soldiers by using the dead as stalking horses in whatever your hatred of the day is. In doing so you trivialize their service and sacrifice.

Chris Stevens, more than any other single person was responsible for the overthrow of the Qadaffi regime and those who served under him are also due regard. They did not shrink from danger during the uprising, providing support to the rebels without which they would not have succeeded. They did not shrink from danger in the post revolutionary period. Sometime the danger gets the brave. Your cheap attempts to use him and the others who died as pawns in your twisted attacks on Brian speaks for itself.

Anonymous said...

Eli,

I am doing no such thing, I more than any other on this board respect and honor those that serve, for you to claim otherwise is dishonest.


Perhaps you made a mistake and meant to type "KT" rather than "1" he has typed his hateful land disrespectful words against those that serve, but he is on your team and thus you turn a blind eye. You have no character, your accusations against me are thus, empty.


1

kT said...

I assure you oh' anonyone, that I am only minimally contributing to the carnage and debauchery, and more importantly, I am contributing, in print and by speaking up, to the process of bringing these problems to your attention, and producing and bringing credible physically and biologically reasonable solutions to the table. You just don't seem to be listening to General and President Eisenhower's final message to you on these issues. Benghazi is not even on the list of problems that confront me.

Mal Adapted said...

Anonyone:

"I more than any other on this board respect and honor those that serve."

Wow, we knew you were a conceited little twerp, but that's one of the most self-righteous statements I've ever seen on a blog. As if we have any reason to think you know anything about honor or respect.

Maybe some day you'll realize how ordinary you are.

Anonymous said...

"Maybe some day you'll realize how ordinary you are."

I know I am ordinary, that is why I honor those that are special, like Ambassador Stevens. That is why I do not sit idly by like everyone else on this board has done when KT calls those who chose to serve in the military today responsible for the deaths of millions of innocent civilians and his derision he directs against those young men and women who choose to serve.


And if you think my statement was the most conceited on this blog, you have not been reading very much of it.


Go look up KT's rants on the military on this board over the last few months. Go try to find anyone on this board, other than me that tried to dispute or call him out on his vile and hateful words.


Please point to any honor and respects on this board.


Mal adapted indeed.


1

kT said...

Go look up KT's rants on the military on this board over the last few months. Go try to find anyone on this board, other than me that tried to dispute or call him out on his vile and hateful words.

Well, I'm too busy solving some real problems. Your problem with my freedom of speech and your constitution is your own problem. Amend it if you don't like it. I can understand why someone sucking on the government tit like you needs to keep that military gravy train running. How are those internment and refugee camps coming, pulling down some big construction contracts are you?

Anonymous said...

Your lack of understanding of what "freedom of speech" means is astounding. Not much more needs to be said.


1

kT said...

Hey, it's mother's day, anonyone, if you don't want my opinion of the military industrial complex and the rubes that 'serve' it, then feel free to go cry to yo mamma because, quite frankly, you have a lot more serious problems on your hands than my opinion of your malfeasance.

bill said...

No. 1 is full of No. 2s

Anonymous said...

KT,

I appreciate your daily contributions to the industrial military complex. I am amazed that you live your life with such contradiction.


I wonder which of your dollars will be responsible for an innocent death tomorrow and where that might be.


Bill is full of crap. There I responded at your level.



1

kT said...

I appreciate your daily contributions to the industrial military complex.

Yes, the Borg is pervasive. Mechanicological man. Chemicular suicide. Where is Benghazi again?

Dude, put up a wall around your village and lay in for the siege.

Brian said...

The best way I can think of to honor Chris Stevens and the others who died is to support their efforts to help Libya rebuild, and to help similar efforts in other countries.

In that light we could look at Bahrain as a place where we really need to change our own country's policies.

Gator said...

#1 says "we just want to understand what happened and why."

Funny thing though -- as far as I can tell, none of the republicans (nor #1 himself) have actually asked questions that might lead to answers about what happened and why. Instead, all questions have been about whether the president cried "terrorism" loud enough. Oh, and whether Hillary can be crucified for this.

Anonymous said...

Gator,

So you did not watch the testimony of three witnesses last week?

Also add Arianna Huffington and Dennis Kucinich to your list of people who are asking questions and do not have biased fingers in their ears.


1

Susan Anderson said...

This is ugly. Why must the worst kind of Republican try to exploit anything and everything, and why won't those with more liberal habits of mind work harder to defend against the ugliness?

It's likely that most money is going to projects like the grotesque Baghdad embassy and the enhancement of techniques that are rapidly motivating more young people abroad to join terrorists in hating the US, rather than defending heroes like Stevens and his colleagues in Benghazi. Death is a serious business, and should not be exploited, but character assassination is a favorite technique of right-wing advocates, and Hillary appears to be due for her innings. It's not a pretty story, and meanwhile our finite home can go hang to support tax cuts for those who don't need 'em as they run all the way to the bank and the banksters who own us all.

a_ray_in_dilbert_space said...

Susan,
It's simple. They hate us more than they hate the worst kind of Republican. It's the only way you can explain why they nominated Bush II.

Anonymous said...

Holy crap!!! Only four died? This is a non-issue then. Nothing to see here at all.

EliRabett said...

A lot fewer than Bangladesh, West Texas and a whole lot of other events.

tonylearns said...

Anonymous,

I have read all the repsonses and don;t see the ones where you apparently have read people thinking it was a good thing that these people die.
after the tragedy happened I repeatedy read two key elements to the republicna narratiuve. ONE was that Susan zrice or the admin invented the myth of the demonstrations in Benghazi. The second was that thw admin had prevented the military from coming to the aid of the consulate(sic.
subsequently there has been an official report that blamed specific people, who have been fired< for actions or lack of actions that were deemed unacceptable, and for good reason.
Not ONE senior military person has even implied that the administration pressured the military to refuse to send in help against the orders of said military commanders. Numerous milatry commanders including Gates have said they would NOT have sent in troops without knowing more<
The two major right wing talking points have been abandoned and replaced with, the admin messaged talking points after the attack, and re-enforcements SHOULD have been sent because Americans were under attack>
What saddens me about this whole issue, is that republicans are SO intent on attacking Obama, and are so ensnared in the belief that Obama is evil they have tried to project a narrative that Obama WANTED these people to die because he hates America. It is pretty stupid because most people realize that is just crazy, and therefore what SHOULD be a small but tragic scandal has become completely politicized and most people just are ignoring the issue because they know the right wing is just foaming at the mouth. So the important issue of security is not really going to be dealt with>
the other thing I find fascinating about this is that it is no public knowledge that the CIA was heavily involved in what was going on, and apparently Right wing ideologies have forgotten that the CIA sometimes engages in activities that are not supposed to be revealed to the public, and that they are often supposed to be engaged in activities that impact the national security of the Untied States. Maybe the CIA being involved had an impact on the security situation. of course the CIA not the administration aren't supposed to talk about such things, but right wing republicans who apparently care nothing for US national security can of course do so with impunity